Supreme values

EXAMINER EDITORIAL WRITER

Published 4:00 am, Thursday, July 1, 1999

IT'S ALWAYS tempting to look at the contents of a U.S. Supreme Court term and herald it as an abrupt swing to the right, or the left, or proclaim that it breaks much important new legal ground. But the 1998-99 term, just completed last week, offers no such seismic shift in philosophy nor any tidal wave scouring out new beacheads in the law.

This was a year in which the Supreme Court tinkered a bit under the hood of the American legal system. It tweaked here, and tuned up things there, but it didn't install a new engine or change the car's design.

Whether you agree that the machine runs better depends on your point of view. In fact, some of the court's fixes will probably work just fine while others really warranted a second, and possibly a third, thought. In some instances, the court overturned laws while suggesting ways they could be made to meet constitutional muster.

A reason for the unexplosive nature of the court's decisions is that its membership, which has been together for a few years, has solidified into a centrist decision-making body. It has its left and right wings, to be sure, but on any given decision the majority of justices fall into the middle of the political spectrum. That sweet spot is anchored by justices Anthony Kennedy and Sandra Day O'Connor. They are often joined, from the left, by Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter, and, from the right, by Antonin Scalia, Clarence Thomas and William Rehnquist.

One claim made for the court's 1998-99 record is that it constitutes a victory for states' rights, a conservative shibboleth invoked most notoriously to defend segregationists in the civil rights era.

The court's decisions, however, don't amount to a tectonic shift, only a recalibration.

For example, the court ruled 5-4 that, under the principle of sovereign immunity, state governments do not have to observe federal laws requiring payment of overtime. Now, there's a common sense argument that states, like any other employer, ought to be required to observe laws about overtime pay. But there's an equally compelling argument, at least for a majority of the justices, that - within limits - states have the constitutional right to arrange their own affairs. In this view, states are free to adopt the federal model or not.

The big worry, of course, is that more important federal protections - say, anti-discrimination laws - will be stripped away. But the U.S. Constitution retains its power over states, as well as other areas of society.

An additional buffer is the gradualist approach the court has staked out.

For example, in ruling that a Chicago anti-gang law was unconstitutional, the court suggested how it might be written to avoid trampling on freedom of association: Add to the required elements of the offense the intention to commit a crime. That would eliminate the worry of Justice Stevens that a boy and his son, who happens to be a gang member when he's not going to baseball games, might be arrested for waiting near a Wrigley Field exit for a glimpse of Cubs' slugger Sammy Sosa.

The court has also shown a sense of subtlety about the drawing of congressional districts. While it won't allow districts in contorted shapes that are created chiefly to achieve certain racial results, it refused to outlaw the use of racial criteria, along with other reasons, in drawing districts.

In another case involving state power, the court slapped down California when this state tried to create a clearly discriminatory two-tier system of welfare payments that gave new arrivals fewer dollars than old-timers.

An array of other cases decided during the term allowed the court to exercise its centrism and pragmatic inclinations.

By a 9-0 vote, it overturned a federal ban on broadcast advertising of casino gambling as an unwarranted intrusion on free speech. As much as this newspaper dislikes gambling, we can't disagree with the court: Free speech applies even to the speech we hate. Still, regulation of casino ads, like oversight of casinos themselves, ought to be permitted if only to knock out phony claims such as "Everyone is a winner."

By a 7-2 vote, it ruled that only people with serious, uncorrectable disabilities were covered by the Americans With Disabilities Act. This, to many, was a curious and wrongheaded decision, but it was a victory for pragmatism over sweeping change.

By a 5-4 vote, it decided that the federal Census must be an actual head count and not a product of sampling techniques. Here the justices abandoned pragmatism for nostalgia. Their dictate, unfortunately, insures a Census riddled with inaccuracy and unfairness toward minorities and the poor.

By the same vote, the court ruled that schools can be sued if they fail to stop one student from harassing another in a severe and pervasive manner. The last phrase is the safety valve that will prevent any feared landslide of lawsuits.

In a unanimous vote, the court ruled that the rights of homeowners are violated when cops invite news camera crews along to film raids. The court may not have given enough weight to the value aggressive news coverage often provides in discouraging police misconduct.

All in all, there's plenty in the court's decisions either to be pleased by or to argue with. But the justices' work was done in small strokes. No cataclysms. No revolutions.

Next year, as always, is a brand new ball game. Among the cases on the docket are ones dealing with separation of church and state, and whether the federal Food And Drug Administration can regulate tobacco products since they contain a drug (nicotine).

The composition of the court could also change, although no one's taking bets. Stevens and Rehnquist are getting on toward retirement age, and O'Connor has experienced health problems. It's also an election year. With a possible turnover of the White House to another political party, speculation will grow about justices retiring, or staying on the court a little longer.

For now, at least, the justices are at center court, and they seem in no hurry to really shake things up.&lt;